Davis v. Kemp

• Court: Arkansas Supreme Court
• Writing for the Court: BROWN
• Citation: Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (Ark. 1972)
• Decision Date: 26 June 1972
• Docket Number: No. 5--5947,5--5947
• Parties: Ruby DAVIS et al., Appellant, v. Dr. Karlton KEMP, Appellee.

Page 712

481 S.W.2d 712

252 Ark. 925

Ruby DAVIS et al., Appellant, v. Dr. Karlton KEMP, Appellee.

No. 5--5947.

Supreme Court of Arkansas.

June 26, 1972.

Harkness, Friedman & Kusin, by Errol N. Friedman, Texarkana, Tex., for appellant.

Wright Lindsey & Jennings, Little Rock, for appellee.

BROWN, Justice.

This is a medical malpractice case. Ruby Davis brought suit for personal injuries and her husband sued for loss of services. The trial court directed a verdict for Dr. Kemp after appellants rested their case. Appellants produced no medical testimony, and essentially that was the reason given for the directed verdict. Appellants contend that the alleged negligence was within the comprehension of the average juror and that expert testimony was not needed.

Appellant Ruby Davis suffered an injury to an ankle when a pickle relish jar fell and shattered, lacerating her right ankle. The pickle company sent her to Dr. Kemp for treatment. Her ankle did not respond to the first two treatments. On the third visit the doctor probed the wound and discovered a piece of glass approximately one inch by one-helf inches wide at one end and one-fourth of an inch at the other end. Mrs. Davis was the only witness for appellants. The thrust of the issues revealed by her testimony was that on the first visit: (1) the doctor failed to irrigate the wound; (2) he failed to make x-rays; (3) he failed to administer antibiotics; and (4) he failed to find the piece of glass.

The applicable rule is well settled in this State. Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970):

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.

In Gray v. McDermott, 188 Ark. 1, 64 S.W.2d 94 (1933), we held that whether it was proper or improper to open up a wound 'or probe into it' on the first visit of the patient requires scientific knowledge to determine. In Walls v. Boyett, 216 Ark. 541, 226 S.W.2d 552, we applied the same...