Fryar v. Touchstone Physical Therapy, Inc.

• Court: Arkansas Supreme Court
• Writing for the Court: Annabelle Clinton Imber
• Citation: Fryar v. Touchstone Physical Therapy, Inc., 229 S.W.3d 7, 365 Ark. 295 (Ark. 2006)
• Decision Date: 16 February 2006
• Docket Number: No. 05-394.,05-394.
• Parties: Katherine B. FRYAR, Appellant, v. TOUCHSTONE PHYSICAL THERAPY, INC. and Michael Teston, Individually, Appellee.

229 S.W.3d 7

Katherine B. FRYAR, Appellant, v. TOUCHSTONE PHYSICAL THERAPY, INC. and Michael Teston, Individually, Appellee.

No. 05-394.

Supreme Court of Arkansas.

February 16, 2006.

William T. Finnegan, Little Rock, for appellant.

Wright, Lindsey & Jennings, LLP, by: Patricia Sievers Harris, Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Katherine Fryar appeals the Pulaski County Circuit Court's grant of summary judgment in favor of Appellees Touchstone Physical Therapy, Inc. (Touchstone) and Michael Teston. The facts underlying this appeal are as follows.

On January 3, 2001, Ms. Fryar was injured in a one-vehicle accident. Her physician referred her to Touchstone for evaluation and treatment. Mr. Teston is a licensed physical therapist employed by Touchstone. From January 22, 2001, through March 30, 2001, Mr. Teston treated Ms. Fryar for her injuries.

Eventually, Ms. Fryar filed a complaint with the Arkansas State Board of Chiropractic Examiners (the Board) related to the physical therapy she received from Mr. Teston. The Board held a hearing on Ms. Fryar's claims on December 10, 2002, and found that Mr. Teston's actions in treating Ms. Fryar violated Ark.Code Ann. § 17-81-303(a)(1) (Repl.2002), which prohibits the practice and offer to practice chiropractic medicine in the State of Arkansas without a license. We affirmed the Board's decision in Teston v. Ark. State Bd. of Chiropractic Exam'rs, 361 Ark. 300, 206 S.W.3d 796 (2005).

On January 21, 2003, Ms. Fryar filed suit against Appellees, alleging negligent treatment on the part of Mr. Teston and respondeat superior liability for Touchstone. On December 2, 2003, Appellees filed a motion in limine to exclude Ms. Fryar's expert witness, Dr. Ronald Colclasure, and a motion for summary judgment. The circuit court held that Dr. Colclasure was not qualified to offer an opinion as to the applicable standard of care, but declined to grant the motion for summary judgment because Ms. Fryar still had time before the scheduled trial date to procure another expert witness.

On September 21, 2004, Appellees filed a second motion for summary judgment, arguing that the only expert witness identified by Ms. Fryar, Brian Reilly, had no expertise in the field of physical therapy. In response, Ms. Fryar submitted an affidavit by Dr. Reilly, stating that he was a licensed Doctor of Chiropractic Medicine, that he had significant education and experience in matters concerning the spine and nervous system, and that he was familiar with the rules and regulations required of physical therapists under Arkansas law. He further averred that, in his opinion, Mr. Teston violated these rules and regulations and performed therapy on Ms. Fryar that was outside the standard of care for physical therapy in Arkansas. Ms. Fryar also argued in her response to the summary-judgment motion that summary judgment was inappropriate because a material dispute of facts existed as to the position Ms. Fryar was in when the therapy was performed. Finally, she argued that a prima facie case for negligence was established on the evidence that Mr. Teston was fined by the Arkansas Board of Chiropractic Examiners for practicing chiropractic medicine without a license. Appellees responded, arguing that Dr. Reilly lacked "intimate knowledge" of physical therapy, that any material issue of fact as to Ms. Fryar's position was not sufficient to overcome summary judgment without expert testimony as to the standard of care, and that the ruling of the Arkansas Board of Chiropractic Examiners was not admissible.

The circuit court granted summary judgment on January 7, 2005, and dismissed the case with prejudice. Ms. Fryar filed a timely notice of appeal. This case was assumed by us as a second or subsequent appeal. See Teston v. Ark. State Bd. of Chiropractic Exam'rs, supra. Jurisdiction is proper pursuant to Ark. Sup.Ct. R. 1-2(a)(7) (2005).

I. Expert Testimony

For her first point on appeal, Ms. Fryar contends that the circuit court abused its discretion in refusing to allow the testimony of Dr. Brian Reilly. Whether or not an expert witness is qualified to testify at trial falls within the sound discretion of the trial court. Wolford v. St. Paul Fire and Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998). The trial court's discretion is not absolute, however, in that a decision to exclude the testimony of an expert witness will be reversed where the trial court has abused its discretion. Id.

With regard to Ms. Fryar's argument that the circuit court abused its discretion in excluding the testimony of Dr. Reilly, it is well established that an expert witness need not be a specialist as long as he or she exhibited knowledge of the subject. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986); Pry v. Jones, 253 Ark. 534, 487 S.W.2d 606 (1973); Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944).¹ In Cathey, the issue was whether Dr. Williams was negligent in failing to order an emergency CT scan. At trial, a family-practice doctor testified in support of Dr. Williams, and the jury found in favor of Dr. Williams. Cathey v. Williams, supra. On appeal, the appellant argued that no general practitioner is qualified to testify with regard to the standard of care that must be met by a specialist such as a neurosurgeon, and that the family doctor's testimony was inadmissible. Id. This court refused to adopt such a strict holding, instead adopting the following language from a California appellate court case:

Nor is it critical whether a medical expert is a general practitioner or a specialist, so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent.

Id. at 192-93, 718 S.W.2d at 101 (citing Evans v. Ohanesian, 39 Cal.App.3d 121, 112 Cal.Rptr. 236 (1974)).

In the instant case, Ms. Fryar submitted an affidavit by Dr. Reilly, as well as his resume. According to the affidavit, Dr. Reilly obtained a degree as a Doctor of Chiropractic Medicine from the Palmer College of Chiropractic Medicine in Davenport, Iowa. He also obtained a Master's Degree in the Biomedical Trauma Program from Lynn University in Boca Raton, Florida. In obtaining these degrees, he studied a curriculum that included texts used in the study of physical therapy. Dr. Reilly also averred that he has "thousands of hours in education and training in matters of the human anatomy, particularly the musculoskeletal area of the cervical spine, proper diagnostic protocols, position release therapy, general physical therapy techniques, and x-ray training," and that he is familiar with the rules and regulations governing physical therapists in Arkansas.

While the abuse of discretion standard sets a high bar for reversal, we have, in certain cases, reversed the trial court's exclusion of expert medical testimony where the affidavit by the doctor demonstrated that the doctor was qualified to testify. See, e.g., Wolford v. St. Paul Fire and Marine Ins. Co., supra; Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). In Thomas, the appellant challenged the trial court's exclusion of expert medical testimony by Dr. Smith. The issue in the case was whether the emergency room physician was negligent in failing to diagnose and treat a myocardial infarction. Thomas v. Sessions, supra. The court stated:

We recognize that the trial court later excluded Dr. Smith's testimony. But we disagree with that conclusion. Dr. Smith is a graduate of the University of Arkansas School of Medicine and has engaged in the general practice of medicine in Arkansas for twenty years. For the past eleven years he has limited his practice to his office, prior to that he engaged in general hospital duties including emergency room practice. Dr. Smith does not specialize in cardiology but regularly treats patients with cardiac problems and considers himself competent and qualified to render an opinion in the field of cardiology. Dr. Smith completed a general internship at St. Vincent Infirmary and has attended continuing medical education courses on a regular basis, including those dealing with cardiology. In short, Dr. Smith was not without the qualifications to testify as a medical expert based on training and experience and appellees have not demonstrated wherein Dr. Smith was incompetent to meet the moderate standards applicable to expert witnesses.

Id. at 209, 818 S.W.2d at 943.

Appellees argue that Dr. Reilly did not demonstrate "intimate familiarity" with the area of physical therapy, citing Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), and Dodd v. Sparks Reg'l Med. Ctr., 90 Ark.App. 191, 204 S.W.3d 579 (2005). In Goodwin, this court examined a trial court's refusal to qualify a doctor as an expert in the field of gynecology. Goodwin v. Harrison, supra. In upholding the trial court's decision, we laid out the doctor's relevant qualifications:

The doctor, Robert Laird, never attended a residency program in obstetrics and gynecology and does not specialize in gynecology. When he served his internship in medical school he delivered babies, but since then he spent twenty-eight (28) years, including reserve time, in the Army medical program. He taught pharmacology in a recognized medical school and was head of the research division of a large drug company. He cannot be said to be intimately familiar with gynecology. He has not held a license to practice medicine in over thirty (30) years. He is basically a medical doctor who went into the field of pharmacology.

Id. at 487, 780 S.W.2d at 524. The Arkansas Court of Appeals relied on Goodwin in reaching a similar conclusion in Dodd v. Sparks Reg'l Med. Ctr., supra. In that case, the court of appeals affirmed...