Wolford v. St. Paul Fire & Marine Ins. Co.

Annotate this Case
Della Lou WOLFORD v. ST. PAUL FIRE & MARINE
INSURANCE COMPANY

97-385                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


1.   Courts -- rules -- use of "may" -- implies permissive rather than
     mandatory action. -- The word "may" as used in a rule implies
     permissive or discretional, rather than mandatory, action.

2.   Civil procedure -- trial court did not abuse discretion in acting within
     authority given by Ark. R. Civ. P. 25. -- The word "may" in Ark. R.
     Civ. P. 25 implies that dismissal of an action as to a
     deceased party is not mandatory under the circumstances
     outlined in the rule; it is, however, discretionary with the
     trial court; accordingly, the supreme court could not say that
     the trial court abused its discretion in acting expressly
     within the authority given to it under Rule 25.

3.   Civil procedure -- motions for substitution of parties and for enlargement
     or extension of time -- trial court did not abuse discretion in denying. -
     - Where appellant did not allege that she was mistaken about
     the time during which she was required to respond to a notice
     of death or that the failure to file a motion for substitution
     of parties in a timely manner was the result of surprise,
     excusable neglect, or other just cause, the supreme court
     could not say that the trial court abused its discretion in
     denying both appellant's motion for substitution and her
     motion for enlargement or extension of time.
4.   Civil procedure -- involuntary dismissal -- standard of review -- such
     dismissals are without prejudice. -- Rule 41(b) of the Arkansas
     Rules of Civil Procedure gives the trial court the authority
     to dismiss cases in which the plaintiff has failed to comply
     with any order of the court; the standard of review of such a
     dismissal is whether the trial court abused its discretion;
     such dismissals are to be without prejudice.

5.   Civil procedure -- decision to dismiss case against deceased party not
     abuse of discretion -- dismissal modified to be without prejudice. -- The
     supreme court concluded that the trial court's decision to
     dismiss the case against a deceased party was not an abuse of
     discretion; because, after several amendments to Ark. R. Civ.
     P. 41, the supreme court has consistently decided that such
     dismissals be without prejudice, the court affirmed the
     dismissal but modified it to be without prejudice.

6.   Appeal & error -- modified dismissal rendered consideration of voluntary-
     nonsuit issue unnecessary. -- Because the supreme court modified
     the dismissal with regard to a deceased party to be one
     without prejudice, it was not necessary to reach appellant's
     argument that the trial court erred in not granting her motion
     for voluntary dismissal without prejudice.

7.   Evidence -- expert testimony -- when required to prove action for medical
     injury. -- Arkansas case law requires a plaintiff to present
     expert testimony to prove an action for medical injury when
     the asserted negligence does not lie within the jury's
     comprehension as a matter of common knowledge.

8.   Physicians & surgeons -- medical expert -- similar-locality rule. -- A
     medical expert need not be familiar with the practice in the
     particular locality, but must demonstrate a familiarity with
     the standard of practice in a similar locality, either by his
     testimony or by other evidence showing the similarity of
     localities; the supreme court looks at geographical location,
     size, and character of the community, basing the similarity
     not on population or area but on the similarity of the medical
     facilities, practices, and advantages.

9.   Physicians & surgeons -- medical specialists from dissimilar fields -- when
     opinion is competent. -- Where medical specialists from dissimilar
     fields testify, the physician must merely exhibit knowledge of
     the subject; where a duly licensed and practicing physician
     has gained knowledge of the standard of care applicable to a
     specialty in which he is not directly engaged but regarding
     which he has an opinion based on education, experience,
     observation or association with that specialty, his opinion is
     competent.

10.  Physicians & surgeons -- medical expert -- evidence established foundation
     showing physician was familiar with standard of practice in similar
     locality. -- The evidence established an appropriate foundation
     showing that an out-of-state physician whose testimony was
     excluded was familiar with the standard of practice in a
     locality similar to the town where the action arose.

11.  Evidence -- expert testimony -- weak or questionable opinion bears on
     weight and not admissibility. -- If there is a reasonable basis for
     saying a witness knows more of the subject at hand than a
     person of ordinary knowledge, his evidence is admissible; if
     an expert's opinion is merely weak or questionable, that fact
     bears on the weight to be given the testimony and not its
     admissibility.

12.  Evidence -- expert testimony -- jury could have benefited from hearing. --
     The medical treatment administered, and not administered, to
     the deceased was clearly a matter outside a person's ordinary
     knowledge, and, the supreme court concluded that, in the
     circumstances surrounding the case, a jury could have
     benefited from hearing expert testimony.

13.  Evidence -- determination of expert witness's qualification -- trial
     court's discretion not absolute. -- The determination of an expert
     witness's qualification to testify is within the sound
     discretion of the trial court; the exercise of this discretion
     is not absolute, and the appellate court will reverse where it
     finds that the trial court has abused its discretion. 

14.  Evidence -- expert testimony -- exclusion constituted abuse of discretion.
     -- The supreme court concluded that an out-of-state physician
     possessed the required credentials and experience to testify
     in the case and held that excluding his testimony constituted
     an abuse of the trial court's discretion.

15.  Judgment -- summary judgment -- appellee not entitled to -- case reversed
     and remanded. -- Because it held that the trial court abused its
     discretion in excluding a physician's expert testimony, it
     also concluded that appellee was not entitled to judgment as
     a matter of law; summary judgment should only be granted where
     there exists no genuine issue of material fact, and the moving
     party is entitled to judgment as a matter of law; here, the
     testimony of the medical expert would have provided the
     requisite background to support a genuine issue of material
     fact as to whether the medical center's nurses and staff
     provided the deceased with adequate medical treatment; the
     resolution of this issue should have been within the province
     of the jury; accordingly, the supreme court reversed the trial
     court's decision granting summary judgment in favor of
     appellee and remanded with instructions for the trial court to
     accept the out-of-state physician as an expert witness.


     Appeal from Independence Circuit Court; John Dan Kemp, Judge;
affirmed in part, as modified; reversed and remanded in part.
     George Bailey, for appellant.
     Womack, Landis, Phelps, McNeill & McDaniel, by:  Paul McNeill,
for appellee.

     Ray Thornton, Justice.
     Appellant, Mrs. Della Lou Wolford, brought this medical-
malpractice action against her deceased husband's physician, Dr.
Nathan Strickland; White River Medical Center and its agents,
servants, and employees; and St. Paul Fire and Marine Insurance
Company.  St. Paul was the liability insurance carrier for the
medical facility and for Dr. Strickland.  While litigation was
pending, Dr. Strickland died.  The trial court dismissed the claim
against him with prejudice when appellant failed to file a motion
for substitution of parties within ninety days following the notice
of death.  The White River Medical Center was dismissed without
prejudice, and the case proceeded to trial against St. Paul on the
remaining issue of medical malpractice of the Medical Center's
nurses and staff.  The trial court ordered a mistrial because of
the relationship of a juror to a witness.
     In preparation for a new trial, St. Paul made a motion in
limine to preclude appellant's expert witness, Dr. Richard
Williams, from testifying because he testified as to a national
standard of care for nurses and did not demonstrate a familiarity
with the standard of nursing care in Batesville, Arkansas, where
the Medical Center was located.  As Dr. Williams was the only
expert-medical witness prepared to testify for appellant at the new
trial, St. Paul orally requested that the court allow it to make a
motion for summary judgment in the event that its motion in limine
to suppress Dr. Williams's testimony was granted.  St. Paul argued
that summary judgment would be appropriate because appellant would
not have a medical expert available to testify in the event of Dr.
Williams's disqualification.  The trial court granted both motions,
and the case was dismissed.
     Appellant brings this appeal from the circuit court's
decision.  For reversal, appellant makes four separate allegations
of error: (1) that the trial court erred either in refusing to
grant her motion for substitution of the deceased surgeon's estate
as a party pursuant to Ark. R. Civ. P. 25(a)(1), or in refusing to
extend her period of time under Ark. R. Civ. P. 6(b)(2) for filing
the motion for substitution; (2) that the trial court erred in
granting the motion to dismiss the claim against Dr. Strickland
with prejudice; (3) that the trial court erred in refusing to grant
her motion for voluntary dismissal of the claim against Dr.
Strickland prior to submission of the case to the court; (4) that
the trial court erred in its application of the law in striking the
testimony of her only expert medical witness, Dr. Williams, and
subsequently granting summary judgment.
     We conclude that the trial court did abuse its discretion in
determining that appellant's proposed witness, Dr. Williams, was
not qualified as an expert to testify as to the standard of nursing
care applicable in 1992 in the area around Batesville, Arkansas,
and therefore, summary judgment was not appropriate.  We conclude
that the trial court did not abuse its discretion in dismissing the
action against Dr. Strickland because the motion for substitution
of parties was not timely filed; however, in accordance with Ark.
R. Civ. P. 41(b), we hold that the dismissal should have been
without prejudice.

I.   Substitution of Parties
     First, appellant argues that the trial court's refusal to
grant either her motion for an extension of time or her motion for
substitution constituted an abuse of its discretion.  We disagree
and affirm on this point.
     A notice of fact of death was filed on January 12, 1995,
informing appellant that Dr. Strickland had died on September 22,
1994.  On May 3, 1995, Dr. Strickland's counsel filed a motion to
dismiss based on the fact that appellant had not filed a timely
motion for substitution of parties.  Dr. Strickland's counsel
alleged that the motion for substitution of parties should have
been made within ninety days from the January 12 filing date, and
no such motion had been filed.  He also noted in the supporting
brief that appellant had filed a notice of claim against the estate
shortly after the notice of death, and therefore argued that lack
of notice of the fact of death should not be an excuse.
     On May 8, 1995, appellant filed a motion for substitution of
parties, well outside of the ninety-day period provided by Ark. R.
Civ. P. 25(a)(1).  Appellant's counsel stated in a supporting
affidavit that he and defendants' counsel had decided in a
telephone conversation that they would choose a mutually convenient
time to accomplish several changes "at one time" to make the
parties proper.  Dr. Strickland's counsel filed his own affidavit,
responding to this allegation by saying that, according to his
billing records, this conversation took place prior to Dr.
Strickland's death and pertained to substituting parties for the
medical facility and for the parties who were individual plaintiffs
at the time.  On May 16, 1995, appellant filed a supplemental
motion for substitution of parties and motion for enlargement and
extension of time pursuant to Ark. R. Civ. P. 6(b)(2).
     On August 15, 1995, the trial court mailed a letter in which
it set out its findings.  In its letter, the trial court found that
appellant did not file the motion for substitution of parties
within the time period required under Ark. R. Civ. P. 25, and the
court expressed its intention to grant Dr. Strickland's motion to
dismiss this case pursuant to Ark. R. Civ. P. 25.
     In our review, we look first to our applicable rule of civil
procedure.  The pertinent portion of Ark. R. Civ. P. 25 reads as
follows:
     If a party dies and the claim is not thereby
extinguished, the Court may order substitution of the
proper parties. . . .  Unless the motion for substitution
is made not later than ninety (90) days after the death
is suggested upon the record by the service upon the
parties of a statement of the fact of death, the action
may be dismissed as to the deceased party.
Ark. R. Civ. P. 25(a)(1) (emphasis added).  It is not disputed by
either party that the motion for substitution was made later than
ninety days after appellant received notice of Dr. Strickland's
death.
     Appellant argues correctly that the use of the word "may" in
the rule connotes that dismissal is not mandatory.  We have stated
that "the word `may' as used in [a] rule implies permissive or
discretional, rather than mandatory, action, . . ."  Lovett v.
State, 267 Ark. 912, 914, 591 S.W.2d 683, 684 (Ark. App. 1979)
(citing Nathan v. State, 235 Ark. 704, 361 S.W.2d 637 (1962)). 
Here, likewise, the word "may" in the rule implies that dismissal
is not mandatory; however, it is discretionary with the trial
court.  Accordingly, we cannot say that the trial court abused its
discretion in acting expressly within the authority given to it
under Rule 25.
     Appellant argues in the alternative that the trial court
should have granted her request for an enlargement or extension of
time pursuant to Ark. R. Civ. P. 6(b).  The applicable portion of
that rule reads as follows:
     Enlargement:  When by these rules or by a notice
given thereunder or by order of the court an act is
required or allowed to be done at or within a specified
time, the Court for cause shown may at any time in its
discretion:  . . . (2) upon motion made after the
expiration of the specified period permit the act to be
done where the failure to act was the result of mistake,
inadvertence, surprise, excusable neglect, or other just
cause . . . .
Ark. R. Civ. P. 6(b)(2) (emphasis added).
     In its letter ruling, the trial court said that both sides
agreed that the conversation at issue, regarding "cleaning up" the
parties and style of the case, occurred prior to the notice of fact
of death.  The trial court went on to state that the filing of the
notice of fact of death should have prompted appellant's counsel to
ask appellee's counsel "whether any such agreement was still in
effect and why the Defendant Strickland had filed the Notice.  No
allegation is made that any agreement was made to extend the time
for filing a motion to substitute the estate for the deceased
defendant."  
     While appellant's counsel alleges that the intent of the
conversation was to perform all the necessary style and party
changes at one time, he does not contend that the conversation was
meant as an agreement to extend the ninety-day period during which
he was required to file a motion to substitute.  We agree with the
trial court that the notice of fact of death should have been
appellant's stimulus to request a clarification.  Further, as noted
above, the notice of fact of death did prompt appellant's counsel
to file a timely claim against Dr. Strickland's estate.
      We conclude that appellant's argument does not allege that
she was mistaken about the time during which she was required to
respond or that the failure to file in a timely manner was the
result of surprise, excusable neglect, or other just cause;
therefore, we cannot say that the trial court abused its discretion
in denying both appellant's motion for substitution and her motion
for enlargement or extension of time.

II.  Dismissal with Prejudice
     Appellant next argues that the trial court abused its
discretion in dismissing the cause against defendant Strickland
with prejudice.  She asserts that Ark. R. Civ. P. 41(b) requires
that the dismissal should have been a dismissal without prejudice. 
We agree, and modify the dismissal to be without prejudice.
     After the trial court's August 15, 1995, letter, appellant's
counsel sent a letter on August 18, stating that, if the dismissal
were to be "with prejudice," he wanted a chance to hold a hearing
and to brief the issue first.  Then, on August 23, after receiving
a copy of appellee's proposed order, appellant's counsel sent
another letter, formally objecting to the form of the proposed
order and renewing his former requests.
     On September 12, 1995, appellant filed a motion for voluntary
dismissal as to defendant Strickland, pursuant to Ark. R. Civ. P.
41(a).  In her brief supporting both this motion and her objection
to the dismissal with prejudice, appellant argued that Rule 41(b)
requires that the dismissal pursuant to Rule 25 should be without
prejudice, and she also argued that her motion for voluntary
dismissal without prejudice should be granted.  On November 13,
1995, the trial court entered its order, finding that the dismissal
as to Dr. Strickland should be granted with prejudice.
     Rule 41 states, in pertinent part:
(b)  Involuntary Dismissal.  In any case in which there
has been a failure of the appellant to comply with these
rules or any order of court . . . , the court shall cause
notice to be mailed to the attorneys of record . . . that
the case will be dismissed for want of prosecution unless
on a stated day application is made, upon a showing of
good cause, to continue the case on the court's docket. 
A dismissal under this subdivision is without prejudice
to a future action by the appellant unless the action has
been previously dismissed, whether voluntarily or
involuntarily, in which event such dismissal operates as
an adjudication on the merits.
Ark. R. Civ. P. 41(b) (emphasis added).
     Appellant cites us to three cases that are particularly
instructive in applying this rule.  In Professional Adjustment
Bureau, Inc. v. Strong, 275 Ark. 249, 251, 629 S.W.2d 284, 284-85
(1982), the appellant argued that the first dismissal under Rule 41
may never be with prejudice.  We determined that a trial court is
not absolutely prohibited from dismissing a case with prejudice for
want of prosecution in all circumstances.  Id.  However, we said
that a court's disposition of a case for lack of prosecution should
ordinarily be without prejudice.  Id. at 251, 629 S.W.2d  at 285. 
In Strong, we distinguished that case from Gordon v. Wellman, 265
Ark. 914, 582 S.W.2d 22 (1979), and stated that unlike Gordon,
where the case had been pending for thirteen years and dismissal
with prejudice may have been warranted, a case involving one-time
neglect did not warrant a dismissal with prejudice.  Id.
     Similarly, in Superior Seeds, Inc. v. Crain, 280 Ark. 142,
144, 655 S.W.2d 415, 416 (1983), the trial court had dismissed a
case where the plaintiff twice disregarded the court's order to
prepare a necessary instruction.  On appeal, we said that, although
the trial court was well within its authority in dismissing the
suit, "[w]e treat the dismissal as one without prejudice."  Id.
(citing Ark. R. Civ. P. 41(b)).
     In the third case, we took our foregoing rationale one step
further.  In Insurance from CNA v. Keene Corp., 310 Ark. 605, 609,
839 S.W.2d 199, 202 (1992), the facts showed that the litigation
had been ongoing for six years at the time that the trial court
gave one of the parties ten days to substitute itself as the real
party in interest.  When the party did not appropriately amend the
complaint within the ten-day period, the trial court granted a
motion to dismiss the case.  Id.  In Keene, we stated that "Rule
41(b) of the Arkansas Rules of Civil Procedure gives the trial
court the authority to dismiss cases in which the `plaintiff has
failed to comply . . . with any order of the court.'"  Id. at 609,
839 S.W.2d  at 202.  Our standard of review of such a dismissal is
whether the trial court abused its discretion.  Id.  We concluded
that the dismissal was not arbitrary or an abuse of discretion, but
we stated that "such dismissals are to be without prejudice" and
modified the dismissal therein to be without prejudice.  Id.
     In the instant case, we conclude that the trial court's
decision to dismiss the case was not an abuse of discretion. 
However, as the foregoing cases illustrate, after several
amendments to Rule 41, we have consistently decided that such
dismissals be without prejudice.  We therefore affirm the
dismissal, but modify it to be without prejudice.

III. Voluntary Nonsuit
     Because we modify the foregoing dismissal to be one without
prejudice, it is not necessary to reach appellant's argument that
the trial court erred in not granting her motion for voluntary
dismissal without prejudice.
IV.  Qualification of an Expert Witness and Summary Judgment
     In her last argument for reversal, appellant urges that the
trial court erred in excluding Dr. Williams's testimony and in
subsequently granting summary judgment.  We conclude that the trial
court's exclusion of Dr. Williams constituted an abuse of its
discretion and that summary judgment was not appropriate.
     In its third motion in limine, St. Paul claimed that Dr.
Williams's deposition testimony indicated that he was not qualified
to testify because he was not familiar with the medical facility in
Batesville, Arkansas, nor was he testifying based on the standard
of care for nurses in 1992 at the same or similar locality.  After
a hearing on the motion, the trial court granted St. Paul's motion
in limine to exclude Dr. Williams's testimony and entered an order
reflecting this decision.  The trial court concurrently entered an
order granting the St. Paul's motion for summary judgment.  The
trial court found that St. Paul was entitled to judgment as a
matter of law because both parties had stipulated that this was a
case that required expert medical testimony and the testimony of
appellant's only expert witness had just been excluded.
     The issue for which expert testimony was required is whether
Mr. Wolford, now deceased, had received adequate care from the
White River Medical Center's nurses and staff.  As her expert
witness, appellant offered Dr. Williams, who had been a board-
certified surgeon, had remained licensed in New York, and had been
licensed to practice medicine for fifty-six years.  Dr. Williams
had practiced in Warsaw, a farm town in upper New York state. 
Warsaw was described as a similar locality to Batesville in terms
of population, number of physicians, and patient drainage and
referral.  Also, the hospital, where he practiced and held many
positions including chief of staff, was described as similar in
size, bed capacity, and equipment to the White River Medical
Center.  He taught nurses for twenty-five years at a three-year
accredited RN school, and he trained nurses for duties in the
operating room.  While Dr. Williams had not practiced for thirteen
years, he never ceased his study of medicine and his license
remained current.  He had previously testified as a medical expert
witness in twelve states, and had reviewed between five hundred and
one thousand cases.
     Our case law requires a plaintiff to present expert testimony
to prove an action for medical injury when the asserted negligence
does not lie within the jury's comprehension as a matter of common
knowledge.  Reagan v. City of Piggott, 305 Ark. 77, 80, 805 S.W.2d 636, 637-38 (1991).  An expert need not be familiar with the
practice in the particular locality, but must demonstrate a
familiarity with "the standard of practice in a similar locality,
either by his testimony or by other evidence showing the similarity
of localities."  First Commercial Trust Co. v. Rank, 323 Ark. 390,
401, 915 S.W.2d 262, 267 (1996) (holding the trial court abused its
discretion in excluding the testimony of an emergency-medicine
physician who met Arkansas's similar-locality rule).  We look at
geographical location, size, and character of the community;
however, we base the similarity not on population or area, but on
the similarity of the medical facilities, practices, and
advantages.  Id.
     We have been presented with cases in which medical specialists
from dissimilar fields have testified and stated therein that the
physician must merely "exhibit knowledge of the subject."  Id. at
399, 915 S.W.2d  at 266.  We stated that "[w]here a duly licensed
and practicing physician has gained knowledge of the standard of
care applicable to a specialty in which he is not directly engaged
but as to which he has an opinion based on education, experience,
observation or association with that specialty, his opinion is
competent."  Id.  
     Based on our case law, the foregoing evidence establishes an
appropriate foundation that shows that Dr. Williams is familiar
with the standard of practice in a locality (Warsaw) similar to
Batesville.  Although appellee argues that Dr. Williams's reference
to a "national" standard of care should be a basis for exclusion,
the argument is without merit.  Dr. Williams is not an attorney,
and it is the court's province to determine if an appropriate
foundation has been made, showing Dr. Williams is familiar with the
standard of practice in a locality such as Batesville.  As seen
from the evidence above, that foundation was shown.
     In Courteau v. Dodd, 299 Ark. 380, 385, 773 S.W.2d 436, 439
(1989), this court, citing A.R.E. 702, held that, if there is a
reasonable basis for saying a witness knows more of the subject at
hand than a person of ordinary knowledge, his evidence is
admissible.  We have also stated that if an expert's opinion is
merely weak or questionable, that fact bears on the weight to be
given the testimony, and not its admissibility.  Ishie v. Kelley,
302 Ark. 112, 116, 788 S.W.2d 225, 226-27 (1990).
     Here, Dr. Williams's expert testimony touched on Alvie
Wolford's medical and physical condition while he was a patient in
the Medical Center, and he opined the nursing staff's failure to
provide proper care and attention to Mr. Wolford had contributed to
his death.  Dr. Williams averred Mr. Wolford had been a victim of
fluid overload, and essentially drowned in his own juices.  He said
that, after the doctors started an IV in Mr. Wolford's arm in the
emergency room, the IV was never removed.  Dr. Williams explained
that Mr. Wolford was administered liquids by the gallon over many
days, even though there were days when he could only get rid of one
quart of urine.  Mr. Wolford gained forty pounds from water intake. 
The doctor went into detail how the nurses' alleged failure of care
caused Mr. Wolford's legs, arms, and face to swell, and how the
fluid filled Mr. Wolford's lungs and decreased the efficiency of
his heart to pump blood.  Dr. Williams concluded that several
causes contributed to Mr. Wolford's death -- abscess, peritonitis,
a hole in the intestine, sepsis, fluid overload -- and all of these
causes exhibit symptoms nurses should have recognized and reported.
     The medical treatment administered (and not administered) to
Mr. Wolford is clearly a matter outside a person's ordinary
knowledge, and in the circumstances surrounding Mr. Wolford's case,
a jury could obviously have benefited from hearing expert
testimony.  If the fact that Dr. Williams has curtailed hands-on
surgery since 1979, or another factor, might be considered a
weakness in his medical background, that weakness is a matter for
the jury to weigh; it is not reason to exclude his testimony.
     The determination of an expert witness's qualification to
testify is within the sound discretion of the trial court.  First
Commercial Trust Company v. Rank, 323 Ark. at 398, 915 S.W.2d  at
266.  However, we have stated that the exercise of this discretion
is not absolute, and we will reverse where we find that the trial
court has abused its discretion.  Id. at 399, 915 S.W.2d  at 266. 
We conclude that Dr. Williams possessed the required credentials
and experience to testify in this case, and we hold that excluding
Dr. Williams's testimony constituted an abuse of the trial court's
discretion.
     Because we hold that the trial court abused its discretion in
excluding Dr. Williams's expert testimony, we also conclude that
St. Paul was not entitled to judgment as a matter of law.  Our rule
states that summary judgment should only be granted where there
exists no genuine issue of material fact, and the moving party is
entitled to judgment as a matter of law.  Ark. R. Civ. P. 56. 
Here, the testimony of Dr. Williams would have provided the
requisite background to support a genuine issue of material fact as
to whether the White River Medical Center's nurses and staff
provided Mr. Wolford with adequate medical treatment.  The
resolution of this issue should have been within the province of
the jury.
     Accordingly, we reverse the trial court's decision granting
summary judgment in favor of St. Paul, and we remand with
instructions for the trial court to accept Dr. Williams as an
expert witness in this case.
     In sum, we affirm in part, as modified, and reverse and remand
in part.