Hamilton v. Allen

• Decision Date: 07 November 2007
• Docket Number: No. CA 06-1051.,CA 06-1051.
• Citation: 100 Ark. App. 240,267 S.W.3d 627
• Parties: Susan R. HAMILTON, Appellant, v. Dr. D.B. ALLEN M.D., Individually and Dr. Ken Taylor M.D., Individually, Appellees.
• Court: Arkansas Court of Appeals

267 S.W.3d 627

100 Ark. App. 240

Susan R. HAMILTON, Appellant, v. Dr. D.B. ALLEN M.D., Individually and Dr. Ken Taylor M.D., Individually, Appellees.

No. CA 06-1051.

Court of Appeals of Arkansas.

November 7, 2007.

The Law Offices of W. Kelvin Wyrick, by: W. Kelvin Wyrick, James E. Keever, M.D., J.D. and Amy Freedman, Texarkana, AR, for Appellant.

Friday, Eldredge & Clark, LLP, by: Laura Hensley Smith and J. Adam Wells, Little Rock, AR, for appellees.

SAM BIRD, Judge.

In this medical-malpractice case Susan R. Hamilton appeals the circuit court's order granting summary judgment in favor of appellees, Dr. D.B. Allen and Dr. Ken Taylor. Hamilton raises four points on appeal: (1) that appellees' motion for summary judgment did not demonstrate a prima facie case and was improperly granted; (2) that the trial court erred in striking her response to appellees' motion for summary judgment on the basis of untimeliness; (3) that the trial court erred in failing to allow her to supplement the affidavit of her expert witness; and (4) that the trial court erred in dismissing her oral motion for a continuance. We find no error by the trial court in granting summary judgment in favor of appellees, and we affirm.

Hamilton underwent gynecological surgery by Dr. Allen on the afternoon of February 10, 2000. Several hours after the surgery Hamilton's blood pressure decreased and her pulse rate increased, suspected to be the result of post-operative, intra-abdominal bleeding. Consequently, exploratory surgery was performed that same evening by Dr. Allen and Dr. Taylor, and two oozing vessels were identified and ligated. A third surgery was required two days later for additional intra-abdominal bleeding: a third bleeding vessel was found and ligated in this surgery, which was performed by Dr. Allen and Dr. Michael Pollock. Hamilton was discharged from the hospital eight days after what had been originally scheduled as a "day surgery." Her allegations of medical negligence regarded Dr. Allen and Dr. Taylor's treatment of her initial post-operative bleeding.

Procedural History

Before addressing the merits of appellant's argument, we briefly summarize the development of this case before the circuit court. Appellant initially filed suit in February 2002, just before the expiration of the statute of limitations. Appellees took the deposition of Dr. Joseph Hume, who had been identified by appellant as the only medical expert she intended to call as a witness at trial. Appellees filed a motion for summary judgment on January 26, 2005, alleging that Hamilton could not meet her burden of proof through the testimony of her expert witness. At a hearing on February 4, 2005, the trial court treated appellees' motion as a motion in limine because it had been filed after a court-imposed deadline for the filing of dispositive motions. The court denied the motion in limine, ruling that Hamilton could call Dr. Hume to testify at trial, that the court would deal at that time with any objections by appellees to Dr. Hume's opinions, and that the court was reserving the right to grant a directed verdict, depending on the evidence presented at trial. The court stated, "So to the extent that the motion for summary judgment can be considered a motion to exclude the testimony of Dr. Hume or some motion in limine to that effect as excluding that portion of the testimony, that motion will be denied." On the same day, Hamilton voluntarily non-suited her case as to all defendants.

On July 13, 2005 Hamilton re-filed her complaint against Drs. Allen and Taylor, making essentially the same allegations of negligence on their part as were made in the first suit. After answering and denying all allegations of negligence, appellees filed a motion for summary judgment on October 6, 2005, based upon the same grounds as their motion for summary judgment in the first lawsuit, i.e., that because Dr. Hume's testimony was speculative, it was insufficient as a matter of law to establish the existence of an essential element of her claim of negligence on the part of appellees.

On November 2, 2005 Hamilton filed a paper entitled "Plaintiff's Designation of Expert Witness," which identified Dr. Harold J. Miller as her only expert witness in the case. Attached to the document was Dr. Miller's affidavit: it set forth the standard of care applicable to the surgical procedures performed on Hamilton by appellees, it stated that appellees had deviated from the standard of care, and it described the nature of such deviation. On December 1, 2005 Hamilton filed her response to the motion for summary judgment. She argued, among other things, that appellees' motion was ill-founded to the extent that it relied upon the deposition of Dr. Hume because his deposition was taken in connection with the earlier case that Hamilton had voluntarily non-suited and, therefore, it was not evidence that could be used as a basis for summary judgment in Hamilton's re-filed lawsuit.

Appellees moved to strike Hamilton's response, arguing that its filing was not timely and that, even if timely, Dr. Miller's affidavit did not establish that he was familiar with the applicable standard of care and, like Dr. Hume's testimony, his opinions were based solely upon speculation. Thereafter, Hamilton moved for leave to supplement Dr. Miller's affidavit and appellees responded in opposition to it.

Following a hearing on May 12, 2006, during which Hamilton orally moved that the hearing be continued until after discovery was completed, the trial court announced its findings: that the doctors' motion to strike Hamilton's response to the motion for summary judgment should be granted because the response was not timely filed, that Hamilton's motion to file a supplemental affidavit of Dr. Miller should be denied because the filing of Dr. Miller's initial affidavit was not timely, that Hamilton's oral motion for a continuance should be denied, and that the appellee/doctors' motion for summary judgment should be granted. The court also reiterated that, at the February 2005 hearing on appellees' motion in limine in the first case, it had reserved the right to grant a motion for directed verdict by appellees and that "the reason they didn't get their motion for summary judgment is they waited too close to trial to get it heard." The court's decision was memorialized in an order entered on June 1, 2006. Hamilton now appeals, arguing the four points set forth in the first paragraph above.

Grant of Summary Judgment

Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996) (citing Ark. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006). The appellate court determines if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. Id. The evidence is reviewed in a light most favorable to the party against whom the motion was filed, with all doubts and inferences resolved against the moving party. Id.¹

In a medical-malpractice action, the plaintiff must prove: (1) the applicable standard of care; (2) that the medical provider failed to act in accordance with that standard; and (3) that such failure was a proximate cause of the plaintiff's injuries. Webb v. Bouton, 350 Ark. 254, 264, 85 S.W.3d 885, 891 (2002). A medical-malpractice complaint is subject to a motion for summary judgment when the plaintiff fails to present expert evidence of those three elements and the defending party demonstrates that the plaintiff lacks proof on one or more of these essential elements. Robbins v. Johnson, 367 Ark. 506, 241 S.W.3d 747 (2006); Parkerson v. Arthur, 83 Ark.App. 240, 125 S.W.3d 825 (2003).² Here, Hamilton had the statutory burden of proving these three essential elements by expert testimony. See Ark.Code Ann. § 16-114-206(a) (Repl.2006); Dodd v. Sparks Reg'l Med. Ctr., 90 Ark.App. 191, 204 S.W.3d 579 (2005).³

In order to demonstrate a genuine issue of material fact, the plaintiff's medical expert must state "within a reasonable degree of medical certainty" that the defendant breached the standard of care and that the alleged breach was a proximate cause of the injury. Mitchell v. Lincoln, supra; Fryar v. Touchstone Physical Therapy, Inc., 365 Ark. 295, 229 S.W.3d 7 (2006). A party against whom a claim is asserted "may move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." Ark. R. Civ. P. 56(c). Burdens of proof for the parties to summary judgment are as follows:

Rule 56(c) [of the Federal Rules of Civil Procedure] mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof....

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to...