Fleming v. Vest

• Decision Date: 04 November 2015
• Docket Number: No. CV–15–252,CV–15–252
• Parties: Victoria Jane Fleming, Individually and as Personal Representative of the Estate of Scott James Fleming and on behalf of the Wrongful Death Beneficiaries of the Estate of Scott James Fleming, Appellant, v. Kenneth Vest, M.D., Appellee.
• Court: Arkansas Court of Appeals

475 S.W.3d 576

Victoria Jane Fleming, Individually and as Personal Representative of the Estate of Scott James Fleming and on behalf of the Wrongful Death Beneficiaries of the Estate of Scott James Fleming, Appellant,

v.Kenneth Vest, M.D., Appellee.

No. CV–15–252

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: November 4, 2015

Bridges, Young, Matthews & Drake PLC, Pine Bluff, by: John P. Talbot, for appellant.

Friday, Eldredge & Clark, LLP, Little Rock, by: T. Michelle Ator and Edie R. Ervin, for appellee.

WAYMOND M. BROWN, Judge

Appellant Victoria Jane Fleming, in her capacity as personal representative of the estate of her deceased husband, Scott James Fleming, appeals the August 15, 2013 order of the Garland County Circuit Court granting summary judgment in favor of appellee, Dr. Kenneth Vest, M.D. This case has reached our court twice before, but we were forced to remand to supplement the record and for lack of a final order.¹ Having found that appellant has cured the deficiencies that have kept us from considering the case earlier, we now address the merits of her appeal.

On April 19, 2010, Sam Lands shot and killed appellant's husband, Scott Fleming. Three years earlier Lands had been found not guilty of charges including battery, escape, resisting arrest, assault, and fleeing, by reason of mental disease or defect. He was treated at the state hospital and then granted a five-year conditional release. Soon thereafter, with the approval of his initial treatment team, he transferred his treatment provider and residence to Community Counseling Services, Inc. (CCS) in Garland County. There he was diagnosed with bipolar disorder

and began treatment. In 2009, appellee became his treating psychiatrist and, in order to determine the appropriate medication regimen, began to withdraw the level of pharmaceuticals administered to Lands. The final time appellee met with Lands before the death of Scott Fleming was on February 24, 2010.

On August 16, 2011, appellant filed a wrongful-death action against Lands, his parents, CCS, and its insurer. On April 19, 2012, exactly two years after the death of her husband, appellant amended her complaint to include appellee as a defendant. He answered and moved for summary judgment, arguing that appellant's claim was barred by the two-year statute of limitations set forth in the Arkansas Medical Malpractice Act² and that such a period began to run on the date he last met with Lands. Appellee also adopted a summary-judgment motion filed by CCS alleging that appellant's claims were barred by the doctrine of quasi-judicial immunity. Conversely, appellant argued that the two-year limitations period did not apply because her husband had been a third-party nonpatient, or alternatively, that she filed within the statutory period because it began to run on the day she acquired standing, when her husband was killed. She further argued that the statutory period was tolled because appellee was engaging in a continuous course of treatment with Lands. Finally, she contended that issues of fact remained which prevented granting the motion for summary judgment on the grounds of quasi-judicial immunity. Following a hearing on the matter, the circuit court granted appellee's motions for summary judgment and dismissed all claims against him. This appeal followed.

Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial court's efficiency arsenal. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Moreover, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence.³

Appellant first argues that it was error for the circuit court to consider her claim under medical-malpractice statutes because her husband, the victim, was not appellee's patient. Rather, she contends her claim arises from the Restatement (Second) of Torts, which states as follows:

One who takes charge of third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.⁴

Her position is that, because her husband was not one of appellee's patients, she could not pursue a claim for medical malpractice. She cites Thompson v. Sparks Regional Medical Center⁵ as standing for the proposition that a nonpatient can never pursue a claim for medical malpractice. This is a misreading. In Thompson, the plaintiff suffered injuries as the result of a motorcycle accident and immediately sought emergency treatment at St. Edward hospital. St. Edward was unable to render emergency aid to Ms. Thompson because no plastic surgeon was at the hospital at the time. She allegedly expressed a willingness to then transfer to Sparks Regional Medical Center, but never arrived there. She brought suit against St. Edward, Sparks, and multiple other parties under the Emergency Medical Treatment and Active Labor Act (EMTALA) and Arkansas's medical malpractice laws. The circuit court granted summary judgment in favor of Sparks because Ms. Thompson never went to the hospital for treatment. In affirming, the court of appeals reasoned that the definition of "medical injury" within our medical-malpractice law required that actual professional services be rendered in order for there to be a basis for a claim of malpractice.⁶ Because no professional services were rendered by Sparks and because Ms. Thompson never went to that hospital for treatment, no professional services were rendered by which she could sue for malpractice. Thompson does not stand for the proposition that nonpatients are unable to sue for malpractice.

On the contrary, this analysis in Thompson actually supports appellee's contention that the death of Scott Fleming qualified as a "medical injury" and therefore, fell under the auspices of medical malpractice.

An "action for medical injury" is "any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury."⁷ The statute defines "medical injury" very broadly:

(3) "Medical injury" or "injury" means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider to a patient or resident, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such serviced without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.⁸

Here, the allegation was that Scott Fleming's death occurred because of the professional services (or lack thereof) being provided to Samuel Lands by appellee. In recognizing the breadth of the definition of "medical injury," our supreme court has made it clear that a nonpatient third party may sue a medical care provider for injuries sustained as a result of a patient's improper treatment.⁹ Accordingly, we find that Scott Fleming's death was a "medical injury" and falls under the Arkansas Medical Malpractice Act.

Because we have discerned the correct nature of the claim, we must now decide whether such a claim was barred by the medical-malpractice two-year statute of limitations.

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.

(b) The date of accrual of the cause of action shall be the date of the wrongful act complained of and no other time.¹⁰

This court reviews the circuit court's statutory interpretation de novo, because it is for this court to determine the meaning of a statute. The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe statute so that, if possible, every word is given meaning and effect. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory construction. When a statute is clear, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Statutes relating to the same subject should be read in a harmonious manner if possible.¹¹

Here, the circuit court granted summary judgment citing appellee's argument that the statute-of-limitations period began the date of his last visit with Lands, February 24, 2010, rather than the date of Scott Fleming's death. Had the statutory period begun on April 19, 2010, her...