Brenda Faye Robbins and Dale Robbins, Her Husband v. Arthur Johnson, M.D. and Orthopaedics, P.A., D/B/A River Valley Musculoskeletal Center
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SUPREME COURT OF ARKANSAS
No.
06-163
BRENDA FAYE ROBBINS AND DALE
ROBBINS, HER HUSBAND,
APPELLANTS,
VS.
A R T H U R JO H N S O N , M .D . A N D
ORTHOPAEDICS, P.A., D/B/A RIVER
VALLEY MUSCULOSKELETAL
CENTER,
APPELLEES,
Opinion Delivered 10-26-06
APPEAL FROM THE CIRCUIT COURT
OF SEBASTIAN COUNTY, ARKANSAS,
NO. CV-05-1038, HON. NORMAN
WILKINSON, CIRCUIT JUDGE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
Appellants Brenda Faye Robbins and Dale Robbins, her husband, appeal from the
circuit court’s order dismissing their complaint against appellees Dr. Arthur Johnson, M.D.
and Orthopaedics, P.A., d/b/a River Valley Musculoskeletal Center. They raise one point on
appeal: the negligence they alleged against Dr. Johnson in their complaint was within a
jury’s comprehension as a matter of general knowledge, and, thus, the circuit court erred in
dismissing their complaint. We disagree, and we affirm.
The Robbinses’ complaint alleged the following facts. On March 26, 2003, Dr.
Johnson performed cervical surgery in the neck of Mrs. Robbins at the Sparks Regional
Medical Center in Fort Smith. The surgery performed was for the purpose of correcting a
cervical disk herniation and osteophytes at the C4-5 and C5-6 levels of the spinal column.
During the surgery, the complaint alleged that Dr. Johnson “negligently caused and allowed
a sharp surgical instrument, a curette, to fall and plunge into her spinal cord, piercing the
dura mater surrounding the spinal cord, then piercing the spinal cord itself, resulting in
damage to the spinal cord and nerves” of Mrs. Robbins. The complaint continued that Dr.
Johnson closed the dural defect with a single suture without consulting her or her husband
and without determining the extent of the spinal cord damage.
The Robbinses further alleged in their complaint that Mrs. Robbins has and will
continue to suffer physical pain and mental anguish as a result of Dr. Johnson’s negligence
in performing the surgery. They asserted that she suffers from numbness and weakness in
her hips and limbs. She also suffers from spasms in many of her muscles, joints, ligaments,
nerves, and tendons. Mr. Robbins alleged that Dr. Johnson’s negligence has caused him to
lose the companionship and consortium of his wife.
According to Dr. Johnson, Mrs. Robbins underwent a cervical disectomy and fusion
at levels C4-5 and C5-6. Dr. Johnson wrote to his attorney:
However, during the course of the operative procedure the procedure was
complicated by the fact that by using one of the curettes in trying to remove the
posterior cervical osteophytes one osteophyte unexpectedly gave way. The
area between the vertebral bodies was tight because of the osteophyte on
inferior surface of C5 and the superior surface of C6 and in this process the
osteophyte unexpectedly gave way allowing the curette to plunge forward
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penetrating the dura creating a small hole there and it was unclear as to
whether spinal cord damage was incurred at that time.1
While Mrs. Robbins was hospitalized after the surgery, Dr. Johnson wrote in that same
letter that he did not notice any significant neurological defects and that there was no
evidence of damage to the spinal cord. At a follow-up visit, Dr. Johnson continued in the
letter that on June 3, 2003, Mrs. Robbins complained of intermittent problems with spasms
and pain. She was referred to a physical therapist for flexibility and muscle strengthening
exercises and continued to receive frequent refills of pain medication. Mrs. Robbins’s next
visit with Dr. Johnson was on September 30, 2003. She told him at that time that she
continued to have a significant amount of pain in her neck.
On March 10, 2005, Mr. and Mrs. Robbins sent notice to Dr. Johnson and his clinic,
Orthopaedics, P.A., d/b/a River Valley Musculoskeletal Center, by certified mail, informing
them of their intention to file a medical-malpractice action for the injuries that resulted from
the cervical surgery. This notice was sent within thirty days of the expiration of the statute
of limitations and served to toll the statute for ninety days. See Ark. Code Ann. § 16-114212(a) (Repl. 2006). On June 22, 2005, within the ninety-day tolling period, Mr. and Mrs.
Robbins filed their complaint against Dr. Johnson and his clinic. The complaint stated that
an affidavit from an expert in the same or related field, as required by Ark. Code Ann. § 16-
1
According to Dr. Johnson’s brief on appeal, an osteophyte is a bony excrescence or
outgrowth, a curette is a spoon-shaped scraping instrument used for removing foreign matter
from a cavity, and dura mater is the outer membrane covering the spinal cord.
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114-209(b) (Repl. 2006), was not necessary in this case, because Mrs. Robbins’s damages
“will be absolutely clear and unmistakable to a layperson.”
Dr. Johnson and his clinic moved to dismiss the complaint and argued that the alleged
negligence against Dr. Johnson did not lie within a jury’s comprehension as a matter of
common knowledge, and, therefore, an affidavit from an expert was required by law to be
filed with the complaint. Because the complaint was filed without the required affidavit
during the ninety-day tolling period, Dr. Johnson urged that the complaint be dismissed for
failure to comply with Ark. Code Ann. § 16-114-212(c)(1) (Repl. 2006).
A hearing on the motion to dismiss was held. At the hearing, Dr. Johnson produced
a letter for the court’s review, which he had sent to his attorney on August 11, 2005, and
which explained in detail what had happened during surgery. The letter was admitted into
evidence, without objection by the Robbinses, together with the Sparks Regional Medical
Center consent form that had been signed by Mrs. Robbins prior to the surgery. Dr.
Johnson’s attorney read from that letter in court during the hearing.
The circuit court granted the motion to dismiss with prejudice. In its order, the circuit
court stated that the alleged negligence in the complaint did not lie within the jury’s
comprehension as a matter of common knowledge, and because the complaint had been filed
during the tolling period without the required affidavit from an expert, the complaint must
be dismissed with prejudice because the statute of limitations had expired. In making its
decision, the circuit court said it was relying on Dr. Johnson’s motion to dismiss and his brief
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in support, the Robbinses’ answer to the motion to dismiss and their brief in support, and “all
exhibits produced at the hearing.” From this order of dismissal, Mr. and Mrs. Robbins
appeal.
Mr. and Mrs. Robbins claim, as their only point on appeal, that their complaint should
not have been dismissed because Dr. Johnson’s malpractice and the resulting damages are
clear and unmistakable to a layperson, and, therefore, no expert affidavit was required.
Specifically, they contend that the negligence complained of was the inadvertent plunging
of the curette into Mrs. Robbins’s spinal cord and that this was the result of “plain clumsiness
easily understood by all juries.”
We first consider whether the circuit court’s order was an order for summary
judgment or an order of dismissal. In the circuit court’s order granting Dr. Johnson’s motion
to dismiss, the court stated that it considered the motion, answer, briefs in support, exhibits
produced at the hearing, and all oral arguments made by the parties. By his own statement,
the judge admitted that he went beyond consideration of the stated allegations in the
complaint. For example, Dr. Johnson’s letter to his counsel describing the surgery was
introduced into evidence at the hearing as an exhibit, and the judge said in his order that he
considered the exhibits in making his decision.
This court has said:
When a trial court considers matters outside the pleadings, the appellate courts
will treat a motion to dismiss as one for summary judgment. Kyzar v. City of
West Memphis, __ Ark. __, __ S.W.3d __ (Jan. 27, 2005). A motion to dismiss
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is converted to a motion for summary judgment when matters outside of the
pleadings are presented to and not excluded by the court. Nielsen v. BergerNielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).
T. J. ex rel. Johnson v. Hargrove, 362 Ark. 649, __ S.W.3d __ (2005). We conclude that the
circuit court’s order of dismissal was, in truth, an order of summary judgment.
We turn then to a consideration of whether that order should be affirmed. In a
medical-malpractice case, the plaintiff’s burden of proof is fixed by statute:
(a) 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:
(1) 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;
(2) By means of expert testimony provided only by a medical care
provider of the same specialty as the defendant that the medical care provider
failed to act in accordance with that standard; and
(3) By means of expert testimony provided only by a qualified medical
expert that as a proximate result thereof the injured person suffered injuries
that would not otherwise have occurred.
Ark. Code Ann. § 16-114-206(a) (Repl. 2006).
Further, the Medical Malpractice Code provides:
(b)(1) In all cases where expert testimony is required under § 16-114-206,
reasonable cause for filing any action for medical injury due to negligence
shall be established only by the filing of an affidavit that shall be signed by an
expert engaged in the same type of medical care as is each medical care
provider defendant.
Ark. Code Ann. § 16-114-209(b)(1) (Repl. 2006).
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This court has discussed the issue of expert testimony in the past:
The necessity for the introduction of expert medical testimony in malpractice
cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180
S.W.2d 818 (1944). There we held that expert testimony is not required when
the asserted negligence lies within the comprehension of a jury of laymen,
such as a surgeon’s failure to sterilize his instruments or to remove a sponge
from the incision before closing it. On the other hand, when the applicable
standard of care is not a matter of common knowledge the jury must have the
assistance of expert witnesses in coming to a conclusion upon the issue of
negligence.
Haase v. Starnes, 323 Ark. 263, 269, 915 S.W.2d 675, 678 (1996) (quoting Davis v. Kemp,
252 Ark. 925, 926, 481 S.W.2d 712, 712-713 (1972)).
Accordingly, it is well settled by § 16-114-206(a) and our case law that expert
testimony is not necessary per se in every malpractice case but rather is needed only when
the standard of care is not within the jury’s common knowledge and when an expert is
needed to help the jury decide the issue of negligence. See Haase, supra.
This court has held on multiple occasions that expert testimony was required because
the alleged negligence did not fall within the common knowledge of the jury. See, e.g.,
Mitchell v. Lincoln, ___ Ark. ___, ___ S.W.3d ___ (June 22, 2006) (expert testimony
required to demonstrate to the jury why medical instructions from a specialist regarding a
blood transfusion for a leukemia patient should have been followed by a family physician);
Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002) (directed verdict should have been
granted for physician when the expert for the patient’s estate failed to testify about what
degree of skill is ordinarily possessed by surgeons in Little Rock when the negligence
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asserted was the physician’s failure to perform surgery on a cancer patient suffering from
free air on the abdomen until over thirteen hours after the physician learned of the surgery
consult and the patient passed away during this time period); Eady v. Lansford, 351 Ark. 249,
92 S.W.3d 57 (2002) (expert testimony required to rebut defense testimony regarding
whether a physician has a duty to inform a patient about rare side effects of medication);
Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996) (medical decision to leave a piece
of drainage tube in a patient’s leg, as opposed to an inadvertent leaving of an object in a
patient’s body, presented an issue outside the jury’s common knowledge and required expert
testimony); Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (matters relating to the
changing of dental implants and treatment of fractured teeth are not matters of common
knowledge to a jury); Reagon v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991) (expert
required to establish standard of care when physician failed to diagnose appendicitis); Napier
v. Northrum, 264 Ark. 406, 572 S.W.2d 153 (1978) (branchial block procedure was not
within the common knowledge of a jury of laymen, and the jury could not find that
anesthesiologist was negligent in failing to warn the patient that a lung puncture might occur
during the procedure where there was no expert testimony that would have permitted the jury
to weigh various types of anesthesia to determine if a warning should have been given).
In the case at hand, Mr. and Mrs. Robbins claim that Dr. Johnson dropped the curette,
which caused an injury to Mrs. Robbins’s spinal cord, and that this negligence is within the
common knowledge of a jury. However, Dr. Johnson’s explanation of what happened,
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according to his letter to his attorney, is much different. He argues that the curette, which
is spoon-shaped and not sharp, may have penetrated the spinal cord only after an osteophyte
unexpectedly gave way. In other words, he contends that he did not merely drop the curette,
but that any injury that may have occurred took place while he was removing an osteophyte
with a curette.
We conclude that in order for a jury to decide whether Dr. Johnson was negligent, the
jury must understand what a cervical diskectomy and fusion is, what instruments are used to
perform the procedure, what procedures and risks are involved, and whether Dr. Johnson’s
actions proximately caused the injury alleged by the Robbinses. Dr. Johnson’s letter makes
it clear that, according to his version of the events, more was involved in this alleged
negligence than simply dropping a sharp surgical instrument. We agree with the circuit court
that an expert was required for Mr. and Mrs. Robbins to meet their statutory burden of proof.2
The question then is whether summary judgment was appropriate. This court has said
that when a plaintiff fails to present expert testimony in a medical-malpractice case, that
plaintiff’s complaint is subject to a motion for summary judgment:
In this case, appellee’s motion for summary judgment was supported by
affidavit revealing that appellant could not prove two essential elements of his
claim. Appellee met his burden of proving a prima facie case for summary
2
Though negligence was also asserted for failure to obtain informed consent for
correcting the dural defect in their complaint, the Robbinses did not pursue this argument on
appeal. Thus, it is abandoned. See Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782
(1995) (stating that this court will not address issues not raised on appeal).
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judgment by showing that appellant had no expert to testify as to the applicable
standard of care and breach by appellee.
Robson v. Tinnin, 322 Ark. 605, 612, 911 S.W.2d 246, 250 (1995). Mr. and Mrs. Robbins
did not produce any expert testimony to support their allegations of negligence. Because we
conclude that Dr. Johnson has demonstrated that expert testimony is required in this case,
no genuine issues of material fact exist, and Dr. Johnson is entitled to summary judgment as
a matter of law. See id.
As a final point, because Mr. and Mrs. Robbins filed their complaint during the
ninety-day tolling period without an expert’s affidavit, their complaint was properly
dismissed with prejudice. The General Assembly has made that point clear:
(c)(1) If the plaintiff files an action for medical injury during this tolling
period without the requisite affidavit required by § 16-114-209(b)(1) and (2),
the complaint shall be dismissed and costs, attorney’s fees, and appropriate
sanctions as determined by the court shall be assessed.
Ark. Code Ann. § 16-114-212(c)(1) (Repl. 2006). In this case, Mr. and Mrs. Robbins filed
their complaint during the tolling period without the required affidavit. The statute of
limitations for their cause of action had expired. Judgment with prejudice was appropriately
entered in favor of Dr. Johnson.
Affirmed.
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