First Nat. Bank v. Newport Hosp. and Clinic, Inc., 83-218

• Decision Date: 06 February 1984
• Docket Number: No. 83-218,83-218
• Citation: 281 Ark. 332,663 S.W.2d 742
• Parties: FIRST NATIONAL BANK, Guardian of Knoxie M. Smith, Appellant, v. NEWPORT HOSPITAL AND CLINIC, INC.; Ramon Lopez, M.D.; and John D. Ashley, M.D., Appellees.
• Court: Arkansas Supreme Court

Page 742

663 S.W.2d 742

281 Ark. 332

FIRST NATIONAL BANK, Guardian of Knoxie M. Smith, Appellant, v. NEWPORT HOSPITAL AND CLINIC, INC.; Ramon Lopez, M.D.; and John D. Ashley, M.D., Appellees.

No. 83-218.

Supreme Court of Arkansas.

Feb. 6, 1984.

Harkey, Walmsley, Belew and Blankenship by John Norman Harkey, and Skinner & Heuer by Sam T. Heuer, Batesville, for appellant.

Frierson, Walker, Snellgrove & Laser by David N. Laser, Jonesboro, for Newport Hosp. & Clinic.

Barrett, Wheatley, Smith & Deacon, Jonesboro, for Ramon Lopez and John Ashley.

HAYS, Justice.

This medical malpractice suit was filed by Knoxie Smith ¹ against Dr. John Ashley, Dr. Ramon Lopez and the Newport Hospital and Clinic, Inc., alleging a negligent failure to diagnose and treat a fractured femur. Each side served interrogatories and the plaintiff asked the defendants to produce certain medical records. While these matters were pending, the defendants filed motions for summary judgment which the trial court granted. On appeal appellant contends it was error to grant summary judgment where interrogatories and requests for production of documents have not been answered and we sustain the argument.

The complaint alleges that Knoxie Smith fell on her left knee and leg, was hospitalized by the Newport Hospital and Clinic, Inc., under the care of Dr. Ashley, her family physician, and Dr. Lopez, an orthopedist; that surgery was performed to correct a recurrent dislocation of the left kneecap; that appellant was urged to walk on the leg and was discharged after surgery despite complaints of pain and an inability to walk; that she attempted to inform Dr. Ashley of her pain but was never examined and was told to continue physio-therapy; that after consulting another physician appellant was found to have sustained a fracture to the mid neck region of the left femur, requiring surgical removal of the femoral head with prosthetic replacement. Separate and specific acts of negligence by the hospital and physicians were alleged.

Prior to filing the suit, Mrs. Smith's attorneys had referred her to Dr. Dennis Davidson, a Batesville physician, to evaluate her disability and advise counsel on whether a claim of malpractice was justifiable. Dr. Davidson was deposed by the defendants. He expressed the opinion that Dr. Ashley was not at fault because he depended on the orthopedist, Dr. Lopez, but not being skilled in that field of medicine he was unable to say whether Mrs. Smith received the proper orthopedic care.

Defendants moved for summary judgment on the basis of the pleadings, the deposition of Dr. Davidson, and affidavits of Drs. Lopez and Ashley that they had used their best judgment and the same care and skill as of other doctors in similar localities in their diagnosis and treatment. Defendants objected to plaintiff's interrogatories and requests on the grounds that they were entitled to summary judgment which would render plaintiff's discovery moot. The trial court found no genuine issue of fact existed and granted summary judgment.

For reversal, appellant urges that the information and documents requested were crucial to her case and were relevant to the issues to be litigated. We agree. The Arkansas Rules of Civil Procedure, patterned after the federal rules, are to be given a broad and liberal interpretation in the implementation of discovery procedures. Bower v. Murphy, 247 Ark. 238, 444 S.W.2d 883 (1969). In Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S.W.2d 173 (1962), referring to a discovery statute now incorporated in ARCP Rule 34, we said:

The language of this statute was taken verbatim from Federal Rule 34. It follows that our legislature, in adopting the wording of the federal rule, also adopted the principle of liberal construction that had been announced in the leading case of Hickman v. Taylor, 329 U.S. 495,...