First Commercial Trust Co. v. Rank

• Decision Date: 12 February 1996
• Docket Number: No. 95-518,95-518
• Citation: 323 Ark. 390,915 S.W.2d 262
• Parties: FIRST COMMERCIAL TRUST COMPANY, Substitute Administrator of the Estate of Laura Allison Fullbright, Deceased, Appellant/Cross-Appellee, v. Joseph John RANK, Mary Ellen Robbins, and Rheeta Stecker, M.D., Appellees/Cross-Appellants.
• Court: Arkansas Supreme Court

Page 262

915 S.W.2d 262

323 Ark. 390

FIRST COMMERCIAL TRUST COMPANY, Substitute Administrator of

the Estate of Laura Allison Fullbright, Deceased, Appellant/Cross-Appellee, v. Joseph John RANK, Mary Ellen Robbins, and Rheeta Stecker, M.D., Appellees/Cross-Appellants.

No. 95-518.

Supreme Court of Arkansas.

Feb. 12, 1996.

James Gerard Schulze and William Gary Holt, Little Rock, for appellant.

D. Scott Hickam, Hot Springs and Tonia P. Jones, Little Rock, for Rheeta Stecker, M.D.

BROWN, Justice.

The appellant, First Commercial Trust Company, Administrator of the Estate of Laura Fullbright, appeals from a judgment in favor of appellee Dr. Rheeta Stecker, who was the family doctor for Laura Fullbright and her mother, Mary Ellen Robbins. The Administrator asserts that the trial court abused its discretion in refusing to allow a medical expert, Dr. Frederick Epstein, to testify with respect to the standard of medical care regarding child abuse in Hot Springs. We agree that this was error, and we reverse the judgment in favor of Dr. Stecker and remand the matter for a new trial on the medical negligence count. We affirm the judgment in favor of Dr. Stecker on the count relating to failure to report under the child abuse reporting statute, and we hold that the refusal of the trial court to direct a verdict on this count in favor of the Administrator was not error.

On June 12, 1992, Mary Ellen Robbins took her 12 1/2- month-old baby, Laura Fullbright, to Dr. Rheeta Stecker for a "well-baby checkup." Robbins was a pharmacist and had been a patient herself of Dr. Stecker's for approximately five years. Dr. Stecker referred to her as a "colleague." During that checkup, Dr. Stecker noticed that Laura's forearm was angulated and swollen, but upon checking, she determined that it was not tender and there was no bruising. An X-ray showed that there was a fracture to both of the bones of the lower left arm. Robbins and her boyfriend, Joe Rank, stated that they did not know what had caused the fractures. Dr. Stecker then referred Robbins to Dr. Robert Olive, an orthopedic surgeon, to assure that the bone would heal properly. At that time, Dr. Stecker believed that there was a possibility the child had been neglected, and that belief was communicated to Dr. Olive. After treating Laura, Dr. Olive stated in a letter to Dr. Stecker that the bones would heal nicely and that there did not appear to be any evidence of neglect.

On July 9, 1992, Robbins visited Dr. Stecker's office again. During that visit, Robbins complained that Laura was "wobbly" and unbalanced. Dr. Stecker did not find any signs of head trauma. Dr. Stecker decided that Robbins had given Laura too much juice. Because Laura had been on multiple antibiotics frequently for a chronic ear infection, Dr. Stecker opined that there might be an overabundance of yeast in her stomach, causing her to become intoxicated.

On July 21, 1992, Robbins returned with Laura again. Dr. Stecker was not there, but her husband, Dr. Elton Stecker, was present and treated Laura. Dr. Elton Stecker's records state that Laura had been nauseated the previous day and had vomited that morning. When the child awoke, there was swelling on the right side of the head in the temple area and over the right eye. Robbins told Dr. Elton Stecker that the bruise above the right ear was caused by a fall the week before.

The next morning, on July 22, 1992, Robbins made two phone calls to the Stecker clinic. In the first of those calls, she stated that she believed Laura was having an allergic reaction and that the swelling over the right eye had gone down but that the other eye had become swollen. Later on that morning, Robbins called and stated that both eyes seemed to be swollen and that Laura was running a temperature of approximately 99.5 degrees. She was told by the nurse to bring Laura in.

When Laura was brought into the clinic, Dr. Rheeta Stecker examined her. Prior to this examination, she referred to the notes taken by her husband the previous day. Both of Laura's eyes now appeared to be swollen, and there was some purplish discoloration. Robbins informed Dr. Stecker that the child had fallen down several stairs the week before and that several of the bruises were related to that fall. Robbins asked if the swelling of the upper lids could be related to allergies or to spider bites. Robbins told her that Laura had had a watery nasal discharge for the last few days which she thought was due to an allergy. At that point, Dr. Stecker discussed the possibility of abuse with Robbins. Robbins informed her that it was highly unlikely, but that her son, Matthew, might have dropped Laura. She further stated that her boyfriend, Joe Rank, was not the type to have a bad temper. Dr. Stecker did not report her suspicions to the Arkansas Department of Human Services.

On September 12, 1992, Robbins was working and left Laura with Joe Rank. When she returned Rank informed her that Laura was taking a nap and that she had fallen down in the driveway. When Robbins went to wake Laura from her nap, she found Laura lying in bed and moving her head from side to side. When she took a closer look, she saw what appeared to be either juice or blood draining from the corner of her mouth. When she picked Laura up, the child was limp. She immediately took Laura to St. Joseph's Regional Health Center in Hot Springs. At St. Joseph's, Laura was not breathing and did not have a pulse. She was transported to Arkansas Children's Hospital in Little Rock where she was later pronounced dead.

The medical examiner, Dr. William Sturner, determined that the cause of death was homicide. He found four bruises on the child's scalp and bruises on her left hand and arm. He also found abraded contusions on the mid-chest of the body and on the face, forehead, the right eyebrow, and the right cheek. The most significant injury, he concluded, was a fracture to the child's skull, with corresponding brain damage. Dr. Sturner opined that those injuries would have had to have been caused by a marked or severe force.

Suit was commenced on behalf of Laura's estate. The suit alleged that Joe Rank intentionally assaulted Laura Fullbright and that her mother, Mary Ellen Robbins, negligently placed Laura in the care of Rank with the knowledge of his past abusive behavior. Medical negligence was alleged against Dr. Rheeta Stecker in addition to her failure to report her suspicions of child abuse under the child abuse reporting statute. Prior to trial, Dr. Stecker moved twice for summary judgment on the basis that the alleged actions on her part were not violative of the child abuse reporting statute. The second motion included a prayer for summary judgment on the medical malpractice claim against her. The trial court denied the motions.

The case went to trial, and the trial court, at the conclusion of the plaintiff's case, granted a partial directed verdict in favor of Rheeta Stecker on the issue of medical malpractice after refusing to allow the plaintiff's expert, Dr. Frederick Epstein, to testify as to the standard of medical care concerning child abuse in Hot Springs. The case proceeded on the remaining issues, and the jury returned a verdict against Joe Rank in favor of Matthew Robbins, Laura's half-brother, in the amount of $1,000,000. The jury found in favor of Mary Ellen Robbins and Dr. Rheeta Stecker on the remaining failure to report count. Judgment was entered accordingly.

I. Medical Expert Witness

The Administrator's first argument is the trial court erred in excluding the testimony of Dr. Frederick Epstein on the standard of care for diagnosing child abuse in Hot Springs, as required by the Medical Malpractice Act and specifically by Ark.Code Ann. § 16-114-206(a)(1) (1987). Dr. Epstein testified that he was an emergency medicine physician from Panama City, Florida. His curriculum vitae confirmed that he was a highly qualified physician.

Dr. Epstein testified that Panama City had a population of approximately 80,000 people. He further testified that in terms of the medical facilities available, Panama City was "very similar" to Hot Springs and that he was unaware of any facilities needed to detect possible child abuse that would have been available in Panama City but not available in Hot Springs. He added that he was familiar with the type of practice in which Dr. Stecker was involved and had formulated an opinion about the standard of care. At that point, the Administrator requested Dr. Epstein's opinion on whether or not Dr. Stecker breached the standard of care.

Prior to the opinion being rendered, Dr. Stecker's attorney asked to voir dire the witness on his qualifications. Dr. Epstein admitted that he was an emergency room specialist rather than a family practitioner and that he did not practice family medicine. He added that the difference in the two specialties was that family practitioners have an on-going doctor/patient relationship and that that was usually not present in emergency room practice. He testified, nevertheless, that the standard of care for doctors in detecting and reporting child abuse would be the same for both emergency room physicians and family practitioners. Counsel for Dr. Stecker then objected to the admission of Dr. Epstein's opinion on the standard of care relating to diagnosis of child abuse on grounds of dissimilar practice and locality. The trial court conditionally granted Dr. Stecker's motion to exclude the expert testimony but allowed the Administrator to make a proffer of proof.

The Administrator first proffered the testimony of Dr. Stecker concerning the medical community in Hot Springs. Dr. Stecker, under questioning by the Administrator's counsel, testified that Hot Springs, a community with a population of approximately 35,000, had two acute and two subacute hospitals. One of the acute hospitals usually had an occupancy of about 120 beds, although it had a capacity of around 270. The...