Haase v. Starnes

• Decision Date: 05 February 1996
• Docket Number: No. 95-892,95-892
• Citation: 915 S.W.2d 675,323 Ark. 263
• Parties: Roger HAASE, Appellant/Cross-Appellee, v. C. Wayne STARNES, M.D., Appellee/Cross-Appellant.
• Court: Arkansas Supreme Court

Page 675

915 S.W.2d 675

323 Ark. 263

Roger HAASE, Appellant/Cross-Appellee, v. C. Wayne STARNES, M.D., Appellee/Cross-Appellant.

No. 95-892.

Supreme Court of Arkansas.

Feb. 5, 1996.

Larry J. Hartsfield, Little Rock, for Appellant.

Thomas F. Meeks, Little Rock, for Appellee.

CORBIN, Justice.

Appellant, Roger Haase, appeals an order of the Pulaski County Circuit Court granting summary judgment to appellee, C. Wayne Starnes, M.D., and dismissing without prejudice appellant's complaint for negligence and breach of express warranty. Thereafter, appellant filed a motion for reconsideration, which included a request for rulings on the constitutional challenges he made to the Arkansas Medical Malpractice Act, Ark.Code Ann. §§ 16-114-201 to -209 (1987 and Supp.1995). Appellee filed a motion to correct the judgment to reflect that the dismissal of the complaint was with prejudice. The trial court entered an order denying both motions. From that order, appellant also appeals and appellee cross-appeals. This case was certified to this court as one involving a question about the law of torts. Ark.Sup.Ct.R. 1-2(a)(16). We find error in the part of the order granting summary judgment of the claim for expressed warranty and therefore affirm in part and reverse and remand in part. On cross-appeal, we modify the judgment to reflect that the dismissal of the complaint as to the claim for negligence was with prejudice.

Appellant filed a complaint against appellee alleging negligence and breach of express warranty arising from appellee's treatment of appellant for a series of hair transplants. Appellant alleged that appellee placed advertisements stating "We guarantee you a full, growing head of hair for the rest of your life," and "Transplants guaranteed to grow for the rest of your life." Appellant asserted that he relied on such advertisements when he agreed to undergo a year-long series of hair transplants, grafts, and scalp reductions performed by appellee. Appellant further alleged that he suffered a severe infection during the course of appellee's treatment that resulted in a scar which is incapable of sustaining hair transplants.

Eventually, appellant stipulated that he would not offer expert testimony to show appellee failed to maintain the applicable standard of care. Thereafter, appellee moved for summary judgment, arguing that he was entitled to judgment as a matter of law due to the absence of expert testimony. Appellant responded to the motion, arguing that expert testimony was not necessary on the facts of this case and that proof of the applicable standard of care and breach thereof is not necessary to a claim predicated on breach of express warranty.

The trial court granted appellee's motion for summary judgment, ruling that, regardless of whether the "medical injury" resulted from negligence or breach of warranty, as long as it resulted from professional services rendered by a medical-care provider, the proof was governed by the Arkansas Medical Malpractice Act, and specifically section 16-114-206. Appellant asserts six arguments for reversal of that order.

I. BREACH OF EXPRESS WARRANTY--BURDEN OF PROOF

The facts are not in dispute. As the trial court stated in its order, the question before it was one of law. On appellate review of such a case, we simply determine whether appellee was entitled to judgment as a matter of law. National Park Medical Center, Inc. v. Arkansas Dep't of Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995).

As his first point for reversal, appellant argues that expert testimony is not necessary to establish a cause of action based on breach of express warranty where the breach can be proven from evidence that is within a jury's common knowledge. Appellant acknowledges that he seeks recovery for a "medical injury" as defined by section 16-114-201(3), and that his burden of proof is therefore governed by section 16-114-206. He argues, however, that when section 16-114-206 is applied to his breach-of-warranty claim, he is placed in the ridiculous posture of being required to offer proof that appellee was negligent in order to prove that appellee breached an express warranty. In summary, appellant's first point has two components: one, he should not be required to prove negligence in this case in order to sustain a cause of action for breach of express warranty; two, expert testimony is not required in his case for breach of express warranty because the contract issue is within the common knowledge of lay persons.

Appellee responds that expert testimony is required regardless of whether a medical-malpractice plaintiff's claim is for negligence or breach of warranty, essentially because the general public is not knowledgeable regarding techniques and procedures for hair-transplant surgery. Appellee responds further that regardless of appellant's argument on this point, he is entitled to summary judgment because appellant did not plead nor offer proof of an express warranty made by him to appellant.

The trial court ruled that, if the injury complained of is a "medical injury," expert testimony is necessary to establish the standard of care and breach thereof and that proof is governed by section 16-114-206 regardless of whether the claim is for negligence or breach of warranty. Because appellant stipulated he would not offer expert testimony on the standard of care and breach thereof, the trial court ruled appellee was entitled to judgment as a matter of law.

The trial court's ruling was in error for two reasons. First, expert testimony is not necessary per se in every medical malpractice case. Our law is well-settled that expert testimony is required only when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (citing Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987)). To emphasize that expert testimony is not required in every medical-malpractice case per se, we repeat a statement from Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), that was quoted in Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972):

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.

Id. at 926, 481 S.W.2d 712-13. This court has consistently applied this rule of law from the landmark case of Lanier to cases arising under the Arkansas Medical Malpractice Act. See, e.g., Robson, 322 Ark. 605, 911 S.W.2d 246.

The second reason the trial court's order was erroneous is because section 16-114-206 does not apply to actions for medical injury based on breach of express warranty when the issue is whether the medical-care provider guaranteed the results. To so apply section 16-114-206 would defy common sense and produce absurd results, and this court does not interpret statutes in that manner. Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995). There is no doubt that, as appellant concedes, his claim for breach of warranty is included in section 16-114-201's definitions of "action for medical injury" and "medical injury":

(1) "Action for medical injury" means any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury;

....

(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, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services 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. [Emphasis added.]

And it is true that section 16-114-206(a) purports to establish the burden of proof in any action for medical injury:

(a) In any action for medical injury, the plaintiff shall have the burden of proving:

(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;

(2) That the medical care provider failed to act in accordance with that standard; and

(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

However, the three requirements of section 16-114-206(a), namely the "degree of skill and learning ordinarily possessed and used by members of the profession," failure to "act in accordance with that standard," and "proximate result," typify three requirements of a cause of action sounding in tort: duty, breach, and cause. These three requirements have no relevance in a contract-based cause of action arising out of a guarantee of specific, favorable results. The standard of care used by medical-care providers in similar communities and situations simply has no relevance in a case where the sole issue is whether a medical-care provider...